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Bouchard v. United States
Citations: 501 F. Supp. 2d 200; 2007 U.S. Dist. LEXIS 59265; 2007 WL 2319108Docket: Civil 05-187-B-W
Court: District Court, D. Maine; August 13, 2007; Federal District Court
Richard Bouchard filed a lawsuit against the United States following an accident on January 19, 2003, where a U.S. Border Patrol agent, Dennis Harmon, collided with his vehicle. The U.S. District Court in Maine determined that the United States was liable under the Federal Tort Claims Act, which holds the government accountable in the same manner as a private individual for tort claims. The court referenced the Maine Supreme Judicial Court's adoption of the single injury rule, which states that a tortfeasor is responsible for the full extent of damages caused by the aggravation of a pre-existing condition, placing the burden of apportionment on the wrongdoer. Bouchard had a history of legal, physical issues, and drug abuse prior to the accident, but the court concluded that the U.S. failed to properly apportion these pre-existing conditions from the injuries he suffered in the accident. As a result, Bouchard was awarded $1,100,000 in damages. The court also addressed issues of liability and negligence, noting that Bouchard's passenger, Brandon, had previously been involved in a separate case where negligence was established against Harmon. Bouchard's motion for summary judgment was granted, preventing the U.S. from contesting its negligence, although the government could still argue comparative negligence on Bouchard's part. Ultimately, the only remaining issue for trial was the amount of damages, with prior rulings limiting the focus to this aspect of the case. Bouchard's background was provided, detailing his upbringing, education, and employment history, which included an interest in welding. Mr. Bouchard obtained a structural welding certification from the Maine Department of Transportation after high school and received extensive on-the-job training, advancing from basic stick welding to complex tasks such as welding high-pressure boilers and pressure parts. He has dedicated his career to welding across various employers, primarily in Maine and the northeastern U.S., with occasional work in southern California. Known for his high skill level, Mr. Bouchard has never failed a welding test required by employers, which further validates his professional competence. Prior to January 19, 2003, Mr. Bouchard experienced a significant motorcycle accident in 1985 at age seventeen, resulting in severe injuries to his right leg, including broken fibula and tibia, and damage to his right ankle. Though he recovered from the leg fracture, he developed degenerative arthritis in the ankle, leading to ongoing pain and instability. An orthopedic examination by Dr. John Naranja in August 2002 revealed chronic ankle instability and recommended surgical options, but Mr. Bouchard did not pursue treatment before a subsequent motor vehicle accident in January 2003. Additionally, Mr. Bouchard has a longstanding struggle with drug addiction, which began due to pain from his motorcycle accident. By late 1993, he recognized his addiction to narcotics. His drug-seeking behavior is documented, including incidents in 1995 and 1996 where he sought narcotic prescriptions at the Eastern Maine Medical Center but was denied due to concerns about his history of substance abuse. Mr. Bouchard admitted to visiting two hospitals for pain relief without disclosing his previous hospital visit. He began using intravenous drugs in 1996 or 1997, primarily acquiring prescription drugs illegally from the street, including heroin during a trip to New Jersey. He identified 1997 as a significant low point, prompting him to voluntarily seek treatment at Mercy Hospital in November 1997, where he detoxified from opiates and methamphetamine. Following treatment, he managed to stay clean for eight to nine months before relapsing in the fall of 1999, leading to a second detoxification at Mercy Hospital from October 22 to October 28, 1999, primarily for Oxycontin use. Mr. Bouchard described a daily routine dominated by drug use, revealing that his ability to remain drug-free varied depending on whether he was working. Despite attempts to maintain sobriety in 2000, including issues related to employment and dental pain that resulted in prescriptions for Vicoprofen and Oxycodone, he continued to struggle with drug use. He had a third detoxification at Acadia Hospital in June 2002, following a referral from his physician, who suggested that his drug-seeking behavior was linked to an ankle injury. Mr. Bouchard left Acadia after only four days, discharging himself against medical advice. There is a gap in medical records between August 2002 and January 2003, which is supplemented by testimony from Dr. David Conner, M.D. Dr. Conner has been Mr. Bouchard's primary care physician since October 24, 2002, and his medical history includes hepatitis C, IV drug abuse, and chronic pain from an ankle injury sustained in 1985. Mr. Bouchard was previously under the care of Dr. Korkut, who was uncomfortable continuing his methadone treatment, prompting Mr. Bouchard to seek Dr. Conner's care for medication management. Although Dr. Conner noted that he lacks a license to prescribe methadone for addiction treatment, he acknowledged that the prescribed methadone for chronic pain was also alleviating Mr. Bouchard's narcotic addiction. On October 24, 2002, Dr. Conner identified hepatitis C as Mr. Bouchard's primary medical concern, with addiction and chronic pain also noted. During a follow-up on November 22, 2002, Dr. Conner prescribed 15 mg of methadone three times daily. By the last appointment on December 30, 2002, Mr. Bouchard reported increased pain, leading to a prescription increase to 10 mg four times daily and the addition of an NSAID, Arthrotec. Prior to a subsequent accident, Mr. Bouchard was employed full-time at Del's Welding and reported stability in his methadone program, a sentiment supported by his son, Brandon Bouchard, who noted improvements in his father's drug-related issues prior to the accident. Mr. Bouchard’s employment history began in 1987 with Cianbro Corporation, followed by positions with various companies, including a refrigeration contractor at Penobscot Frozen Foods, Bouchard Sheet Metal Welding with his brother, BE. K Construction at an International Paper mill, and Maine Energy Systems. He later worked with Holden Company on multiple projects before a brief stint with Del's Welding Fabrication and then L. M Plumbing and Heating, before moving to Zurn-Nepco until March 1993. Mr. Bouchard began working at NIC in Berlin, New Hampshire, on a paper mill but transitioned to a higher-paying position with G. C Enterprises at the Air National Guard Base in Bangor, Maine, about six weeks later. After completing that project, he worked at McGuire Air Force Base in New Jersey until February 1995. He then returned to New Hampshire for a project at Pease Air Force Base, which concluded in the fall of 1995. In that same fall, he assisted G. C’s sister company, Eagle Construction, on a short project in Lakehurst, New Jersey. In spring 1996, he worked for BMW at International Paper in Jay, Maine, followed by a position with L. M at McCain's in Easton until spring 1997. He was called back to work for the refrigeration company on a project in Mars Hill, Maine, which lasted until fall 1997, during which he suffered an ankle injury and was on workers' compensation. Although he briefly returned to BMW that winter, he chose to take a break from welding to assist a family friend in home construction until summer 1998. He resumed welding in fall 1998 with L. M at McCain's, remaining there until fall 1999. In January 2000, Mr. Bouchard was hired by the Saxon Group in Veazie, Maine, but left by late March to work for Maine Pipers, maintaining power plants in California and Utah, before returning to Maine for a brief shutdown project. He worked for L. M again in summer 2000 and undertook work on a water tower at Loring Air Force Base that fall, leading him to various jobs until December 2001. Mr. Bouchard returned to work for Del's in 2002, taking on projects at Mars Hill and McCain's. After being laid off due to a lull in work, he briefly returned to L. M but was called back to Del's in fall 2002, continuing until two days prior to a reported accident in 2003. In his testimony regarding the physical demands of welding, Mr. Bouchard noted that the requirements vary by job but generally include carrying welding leads connected to a welding machine. These leads are copper wires, approximately an inch in diameter, and can extend up to a hundred feet, depending on the machine's location relative to the job site. Mr. Bouchard testified about his job requirements, which included regularly climbing ladders and scaffolding, constructing scaffolding, and performing work at significant heights that necessitated balance. He often had to crouch or kneel to position himself for welding, working a minimum of eight hours daily, often extending to twelve hours, seven days a week. Regarding his criminal history, Mr. Bouchard faced multiple charges over the years. In 1993, he was convicted of reckless conduct, resulting in seven days of incarceration. In 1995, he received a suspended sentence for misdemeanor assault and later faced probation violations. He was also found guilty of violating a protective order, theft by deception, disorderly conduct, and criminal mischief, leading to various fines and incarceration terms. In 1999, he was convicted of felony assault, sentenced to one year in jail with sixty days to serve, and released in early 2001. On January 19, 2003, Mr. Bouchard was involved in a serious car accident while driving with his son in snowy and slippery conditions. He observed an oncoming vehicle veering uncontrollably before it collided with his car on the driver's side. Following the crash, Mr. Bouchard was trapped in the vehicle, necessitating rescue with the jaws of life. He was transported by ambulance to The Aroostook Medical Center and then transferred to Eastern Maine Medical Center (EMMC) for surgery, where he complained of pain in both legs and his right arm. At EMMC, he underwent surgical procedures to address fractures in his arms and legs. On January 24, 2003, Mr. Bouchard was discharged with multiple diagnoses, including fractures of the right distal radius, right distal femur, and left proximal femur, alongside recovering from narcotic addiction. Dr. Bower noted a positive start in physical therapy and a good prognosis for healing. After returning to Aroostook County, Dr. Stephen Wood optimistically assessed Mr. Bouchard's recovery and recommended physical therapy, which he pursued but did not progress satisfactorily. On September 10, 2003, he consulted Dr. Naranja regarding restrictive motion in his right knee, which exhibited only 10 to 30 degrees of motion, far below the normal range. Dr. Naranja suggested removing some hardware from the knee and performing lysis of adhesions, which was carried out on October 10, 2003. Post-surgery, Mr. Bouchard's range of motion improved to 120 degrees, but he continued to have complications, including incision issues and suspected bursitis, treated with a Cortisone injection. By June 2, 2004, his range of motion remained at 120 degrees, with noted quadriceps atrophy and ankle instability, leading to a recommendation for further physical therapy. On July 7, 2004, Mr. Bouchard reported that a rod installed in a prior surgery was shifting, prompting Dr. Naranja to schedule another surgery for October 8, 2004. Despite this surgery, by February 24, 2005, Mr. Bouchard experienced significant pain and difficulty walking, resulting in the decision for a total knee replacement on April 11, 2005. By November 2, 2005, post-replacement, he was noted to be progressing well, but by December 14, 2005, Dr. Naranja recognized chronic deconditioning and recommended a no-work capacity to preserve the knee's longevity. By April 19, 2006, Mr. Bouchard reported improved activity levels, swimming regularly. His last visit on November 2, 2006, revealed complaints of right wrist pain and instability in the right knee; however, he exhibited full range of motion in the knee, with well-healed incisions. Dr. Naranja expressed concern over leg atrophy and recommended Biodex testing to assess the right and left legs' strength. Dr. Conner has been Mr. Bouchard's primary care physician since January 19, 2003, and after an accident, he significantly increased Mr. Bouchard's methadone dosage from 40 mg to 200 mg per day due to chronic pain, despite it being ineffective in pain management. By late 2006, Dr. Conner decided to wean Mr. Bouchard off methadone and prescribed Suboxone, which reduced his narcotic cravings but did not adequately manage his pain. Dr. Conner also attempted alternative pain medications like Cytotec, Lyrica, Cymbalta, and Amitriptyline, but reported limited success in treating Mr. Bouchard’s chronic pain and expressed concerns about his long-term prognosis, indicating that Mr. Bouchard would require ongoing medical care for his injuries and pain. In the summer of 2006, Mr. Bouchard engaged in some outdoor activities but showed a marked decline in physical ability compared to his pre-accident lifestyle, as noted by his son, Brandon. Brandon described their shared recreational activities in the past and highlighted that Mr. Bouchard now struggles with basic tasks, relying on his son for household maintenance due to his physical limitations. Mr. Bouchard experiences discomfort during activities like boating and fishing and has difficulty with prolonged sitting or driving, often needing breaks to walk. Mr. Bouchard has exhibited ongoing drug-seeking behavior since the accident. In July 2003, he visited the emergency department for sleep issues and withdrawal symptoms from methadone but refused voluntary admission. The following month, he sought pain medication at another hospital but was denied due to his admission that his primary physician was withholding further prescriptions. In July 2004, Mr. Bouchard sought treatment at Cary Medical Center's emergency department following a low-speed car roll-over, initially experiencing no pain but later developing shoulder pain. On October 12, he returned for a leg dressing change and requested a prescription for pain medication, intending to transition off methadone. He was denied additional pain medication on October 17, as he was already prescribed Percocet and methadone. In December 2004, Mr. Bouchard visited the center for a toothache and received a short-term prescription for oxycodone. Later that month, he was found asleep in his car after visiting friends, attributing his drowsiness to fatigue and knee pain, alongside having taken methadone, Sudafed, and Benadryl. At trial, both parties agreed on the accident details and subsequent medical treatments but disagreed on Mr. Bouchard's earning capacity and the impact of his injuries. Mr. Bouchard presented a tiered expert testimony approach, including Dr. Naranja on physical restrictions, vocational counselor Jack Bopp on employment potential, and economist Dr. McCausland on earnings potential. The United States countered with orthopedic surgeon Dr. Bono on physical restrictions and counselor Ms. Kalikow on employment potential, while highlighting perceived flaws in Dr. McCausland's analysis. Additionally, the United States extensively cross-examined Mr. Bouchard regarding his pre- and post-accident addictive behaviors to argue that these negatively affected his earning capacity. Dr. Naranja's testimony included a description of the seriousness of a total knee replacement. Surgery for total knee replacement involves opening the knee joint to shave off arthritic areas from the femur, tibia, and patella, replacing it with metal and plastic components. Patients with artificial knees experience altered sensations due to the absence of nerve endings, leading to potential overexertion. Additionally, the surgery can cause muscle atrophy, affecting balance and gait, which may disrupt other bodily functions. Dr. Naranja testified that total knee replacements are typically advised for patients aged sixty-five and older due to their limited longevity, which ranges from ten to twenty years for older patients but significantly decreases for younger patients like Mr. Bouchard due to possible increased activity levels and bone conditions. He recommended that Mr. Bouchard be placed on "no work" status to preserve the knee's longevity, as future replacements could become problematic due to insufficient bone for anchoring, potentially limiting options to bone fusion or no knee at all. Dr. Naranja estimated that Mr. Bouchard might need a knee replacement again in ten to twelve years, with subsequent replacements needed every ten years thereafter, each having reduced longevity. To enhance the longevity of Mr. Bouchard's knee replacement, Dr. Naranja imposed strict physical activity restrictions. Mr. Bouchard is classified as having "no work capacity." He may sit for up to two hours, stand or walk for one hour, and drive for two hours continuously. Over an eight-hour day, he may sit, stand, and walk for a combined total of four hours each, but must take breaks. Heavy lifting is restricted, allowing frequent lifts of ten to twenty pounds, with the possibility of occasionally lifting over twenty pounds if feeling particularly well. Mr. Bouchard is advised to avoid lifting over twenty pounds and should not engage in climbing or balancing due to the absence of nerve sensation in his artificial knee. Dr. Naranja recommends that he refrain from kneeling, crouching, squatting, or any activities that exert additional force on the knee, though he may perform unrestricted upper body activities. Given these restrictions, Dr. Naranja determined that Mr. Bouchard should not return to his previous job as a welder and anticipates he may be disabled from competitive work between the ages of forty-five and fifty due to future knee replacements. Cross-examination revealed that a bone scan showed no signs of issues with the artificial knee, and Mr. Bouchard exhibited a good range of motion, with flexion of zero to 120 degrees as of April 2006. By July 2006, he experienced no significant pain, was stable, able to walk without assistance, and could climb stairs as part of physical therapy. However, Mr. Bouchard had canceled six consecutive appointments with County Physical Therapy, which indicated that while he had potential for improvement, he lacked understanding of how to enhance his physical abilities and had been unresponsive to their attempts to contact him. Dr. James Bono, the Government's medical expert, confirmed that Mr. Bouchard's total knee replacement was medically appropriate. He applied the AMA Permanent Impairment Guidelines, which led him to conclude that Mr. Bouchard had a thirty-seven percent impairment of the right leg and a fifteen percent whole person impairment. Dr. Bono also advised against climbing, kneeling, crouching, crawling, or balancing, aligning with Dr. Naranja's restrictions. Doctors recommended that Mr. Bouchard limit his standing or walking to no more than four hours and his driving to four hours within an eight-hour day, with breaks required. Dr. Bono's restrictions were less stringent than Dr. Naranja's, allowing Mr. Bouchard to lift a maximum of forty pounds and sit for up to four hours, but not stand or walk for more than two hours without a break. He stated that the lifespan of artificial knees ranges from fifteen to twenty years, influenced by various factors, and compared their maintenance to that of a car. Dr. Bono had never treated Mr. Bouchard but indicated that the restrictions were standard for patients with artificial knees, not tailored specifically to him. He noted that total knee replacements are rare in patients in their thirties, representing only 0.5% of his surgical experience, and agreed that Mr. Bouchard should not return to his previous job as a welder, which involved heavy lifting. Mr. Bouchard also presented testimony from vocational rehabilitation counselor Jack Bopp, who evaluated his post-injury abilities and earning capacity. Mr. Bopp has experience in placing individuals with disabilities in jobs and is familiar with the demands of welding. After conducting an initial interview in July 2005 and reviewing Mr. Bouchard's medical, social, educational, and employment history, Mr. Bopp confirmed the heavy physical requirements of welding as defined by the U.S. Department of Labor. Medium exertion, as defined by the Department of Labor (DOL), involves being on one’s feet for at least six hours a day and lifting weights of up to fifty pounds, with frequent lifting of approximately twenty-five pounds. Heavy exertion includes frequently lifting fifty pounds and occasionally lifting up to one hundred pounds, along with occasional crouching, stooping, and kneeling. Mr. Bopp evaluated the work restrictions from Dr. Naranja and Dr. Bono, concluding that Mr. Bouchard is unable to return to welding due to his physical limitations, despite retaining his knowledge of the trade. The demand for skilled welders in Maine remains high, which Mr. Bopp noted. Using the REPEL methodology, Mr. Bopp recommended a one-year vocational rehabilitation plan for Mr. Bouchard. He expressed that educational training was not suitable, given Mr. Bouchard's lack of recent educational experience and computer skills. Instead, the focus should be on finding the most appropriate job for Mr. Bouchard and addressing any arising issues in that role. Employability was assessed by comparing jobs Mr. Bouchard could perform prior to his disability with those he could qualify for afterward. Mr. Bopp found that Mr. Bouchard’s physical restrictions prevented him from transitioning to any related jobs. While Mr. Bouchard’s background might allow him to pursue unskilled positions such as a welding machine operator or bench welder, these roles would not provide adequate financial compensation. Furthermore, Mr. Bouchard lacks transferable skills for skilled jobs, and his educational background does not support his employability. Assessment results indicated that Mr. Bouchard's academic skills were at the sixth-grade level and that his vocational aptitude ranged from below average to average. Mr. Bopp assessed Mr. Bouchard's employability challenges, citing significant physical restrictions outlined by Dr. Naranja. He indicated that Mr. Bouchard would likely only qualify for unskilled, low-paying jobs that would necessitate modifications due to his limitations. Mr. Bopp highlighted that employers often prefer candidates who can perform jobs without special accommodations, creating further barriers for individuals with disabilities. Placeability, or the competitiveness for available jobs, was noted as a concern for Mr. Bouchard, particularly due to his physical disabilities and felony conviction, which could hinder his job prospects. However, his background in welding mitigated some placeability issues within that specific field, where similar social factors are more prevalent among workers. Regarding earning capacity, Mr. Bopp estimated that Mr. Bouchard could have earned $12 per hour prior to his injury, a conservative figure compared to the average welder's wage of $16 to $17 per hour in Maine. Post-injury, Mr. Bopp outlined two scenarios for Mr. Bouchard's earning capacity: zero if he has no work capacity, or a positive amount if he could find a job within imposed restrictions. Potential job options included roles such as dishwasher, maid, and office clerk, but Mr. Bopp cautioned that even these "light exertion" positions may surpass Mr. Bouchard's standing limitations, requiring employer accommodations. Labor force participation, synonymous with work life expectancy, assesses the duration an individual can remain employed and the likelihood of premature workforce separation due to disability. In Mr. Bouchard's case, his psychosocial challenges are expected to reduce his employment frequency compared to peers of his age, gender, and profession. Expert Mr. Bopp estimated that Mr. Bouchard would work at only 75% of the expected capacity for his demographic, leading to a 25% reduction in work life expectancy. Mr. Bopp's conservative earning estimate for Mr. Bouchard is $12 per hour, despite acknowledging a potential for $15 per hour, emphasizing that the lower figure is more reliable. Mr. Bouchard has already lost four years of work capacity, with an additional projected loss of at least two years before age 48. During cross-examination, Mr. Bopp recognized a link between earning capacity and psychosocial issues but maintained that his estimate accounted for Mr. Bouchard's past struggles with addiction, asserting that even an increase in psychosocial problems would not alter his projection. He noted that Mr. Bouchard had previously earned well despite his drug issues, and his estimates considered the fluctuations in Mr. Bouchard's earnings over time. The Government challenged Mr. Bopp on the basis of his assumptions regarding Mr. Bouchard's earnings and work hours, revealing that he lacked documentation from employers apart from Del's Welding, relying instead on Mr. Bouchard’s self-reported information. The average annual hours worked by welders were also discussed, with Mr. Bopp stating a typical range of 1600 to 1800 hours, while noting that Mr. Bouchard had only worked 1500 and 1000 hours in the two years preceding the accident. In rebuttal, the United States introduced Ms. Eileen Kalikow, a vocational rehabilitation counselor, to evaluate Mr. Bouchard’s current capabilities and earning potential, similar to Mr. Bopp’s role. Ms. Kalikow reviewed Mr. Bouchard's medical records and depositions, meeting him in September 2006 and speaking with him in October 2006. She assessed his physical abilities considering Dr. Naranja's medical restrictions and concluded he could work in sedentary to light roles, identifying opportunities such as assembling, bench welding, sheet metal fabrication, production work, and customer service with accommodations. She estimated these jobs would pay between $12.86 and $18.19 per hour. Furthermore, Ms. Kalikow opined that with additional education, Mr. Bouchard could perform jobs like electric motor repair or electronic assembly, earning between $10.62 and $14.44 per hour. During cross-examination, Mr. Bouchard raised concerns about the categorization of some identified jobs as requiring medium strength, which he argued exceeded his capabilities. Ms. Kalikow acknowledged that while certain welding jobs require medium strength, some aspects do not. When questioned about job availability within a reasonable commuting distance, Ms. Kalikow admitted she had not researched this, nor did she dispute Mr. Bopp's testimony indicating no openings were found. Ultimately, she asserted that Mr. Bouchard's earning potential remained similar to pre-accident levels. Dr. Alan Stewart McCausland, an economist with a Master's and Ph.D. in labor economics, was brought in to evaluate the rehabilitation plan's cost and Mr. Bouchard's economic loss by examining his pre- and post-injury earning capacity through two scenarios. Mr. Bouchard is assessed regarding his earning capacity post-injury, with two key conclusions: he has no ability to work, and if able, his post-injury earning capacity requires evaluation. Dr. McCausland provided calculations based on various assumptions and fringe benefits related to Mr. Bouchard's economic loss. For Mr. Bouchard's pre-injury earning capacity, Dr. McCausland calculated an annual figure of $24,960 by multiplying a wage rate of $12 per hour by 2,080 hours. Adjustments were made for expected annual raises, unemployment probabilities, and psychosocial factors, resulting in a 33% reduction of his earning capacity to $17,482.13 at age thirty-five. After applying a real discount rate, the present value of his earning capacity at that age was determined to be $16,228.13, culminating in a total present value of $541,130 for his earning capacity until age sixty-seven. The pre-injury fringe benefits were calculated at $93,074 based on the private industry rate of 17.2%, excluding Social Security due to Mr. Bouchard's anticipated disability benefits. For post-injury earning capacity, Dr. McCausland utilized a list of potential jobs identified by Mr. Bopp, calculating an average hourly wage of $8.93 for 2004, leading to an annualized wage of $18,574.40. He employed similar methodologies for assessing this capacity as he did for pre-injury calculations. Dr. McCausland assessed Mr. Bouchard's economic losses following his injuries, applying a total employment reduction of fifty-five percent, which included a thirty-three percent psychosocial reduction and an additional twenty-two percent due to his injuries. For the year 2007, the present value of Mr. Bouchard's earning capacity was calculated at $8,436.94, leading to a total present value of $70,138.00 through age 47. After considering fringe benefits, the net value was determined to be $12,064.00. Combining these figures, Dr. McCausland estimated Mr. Bouchard's total net economic loss at $668,064, based on some work capacity. In a scenario of no work capacity, the loss increased to $750,266. Additionally, Dr. McCausland evaluated Mr. Bouchard's loss using his earnings history. Using a five-year earnings history, the average annual wage was calculated at $20,746.02, resulting in a low-end economic loss of $801,798 and a high-end loss of $884,000. Analyzing ten years of earnings history produced a loss range of $1,032,845.00 to $1,115,047.00. Finally, utilizing the complete sixteen-year earnings history, the loss range was estimated between $1,192,472.00 and $1,274,674.00. On cross-examination, Dr. McCausland clarified discrepancies between his projected work life expectancy for Mr. Bouchard (67 years) and Mr. Bopp's estimate (59 years). Dr. McCausland emphasized that he relied on Mr. Bopp's figures for earning capacity and disability reduction but not for work life expectancy, which he argued is better assessed through age earnings profiles rather than work life expectancy tables published by the Bureau of Labor. He cited his own published work criticizing the use of work life expectancy as an analytical tool. The United States introduced Exhibit 182, detailing Mr. Bouchard's earnings history, noting that his 1991 earnings of $46,656.47 would convert to $63,032.89 in 2003 dollars, while his 2002 earnings of $11,973.50 would become $12,248.89. This conversion highlighted a more severe decline in earnings over the period. Regarding undisputed matters, Mr. Bouchard presented medical bills totaling $172,968, which the United States did not contest. Additionally, Dr. McCausland estimated the present value of future rehabilitation and medical expenses, including knee replacements, at $116,062, a figure also unchallenged by the United States. The excerpt also references Lovely v. Allstate Insurance Company, where the Maine Supreme Judicial Court determined that the single injury rule applies even when a negligent act aggravates a preexisting injury, underscoring that a jury must hold the defendant liable for the full extent of the injury if damages cannot be apportioned. The court established that when injuries are indivisible, the defendant is liable for the entirety of the damages, placing the burden of apportionment on the defendant rather than the plaintiff. In this case, the court found it impossible to divide Lovely's injuries from two incidents, thus holding the defendant responsible for all damages to Lovely's elbow. Justice Lipez, in his concurrence, clarified that the plaintiff must demonstrate a causal link between the injury and its consequences, but once this burden is met, the defendant must also prove any claims of preexisting or subsequent injury that might limit liability. There is no separate burden on the plaintiff to show that the injury cannot be apportioned before the defendant is required to establish causation for their claims. The apportionment issue arises when the defendant presents evidence of other injuries that they argue contribute to the plaintiff's damages. In the medical analysis section, there was significant consensus among orthopedic surgeons regarding Mr. Bouchard's knee injuries and the necessity for total knee replacement surgery following the January 19, 2003 accident. All doctors agreed on the need for future revisions of the knee hardware and recommended activity restrictions to prolong its longevity. Despite some disagreements among the doctors, their opinions regarding the total knee replacement's longevity were largely consistent, and variances in activity restrictions did not substantially affect Mr. Bouchard’s earning capacity. Dr. Naranja estimates the useful life of Mr. Bouchard's total knee replacement at ten to twelve years, while Dr. Bono suggests a range of fifteen to twenty years. The court averages these opinions, determining the knee hardware will likely require replacement every twelve to fifteen years, acknowledging the lack of evidentiary significance in the varying estimates. The parties have agreed on future medical costs but have not differentiated potential damages based on the differing medical opinions regarding longevity. Regarding physical restrictions, Dr. Naranja advocates for near-total disability with a strict set of limitations, while Dr. Bono proposes a less restrictive approach. Both doctors agree on prohibiting climbing, kneeling, crouching, crawling, and balancing, as well as limiting standing or walking to four hours within an eight-hour workday. Discrepancies exist in weight lifting allowances and durations for various activities, with Dr. Naranja suggesting more stringent limits than Dr. Bono. The court rejects Dr. Naranja's recommendation of total work cessation for Mr. Bouchard, ruling that restrictions apply only to his right lower extremity while he retains full use of his upper body and cognitive abilities. Mr. Bouchard, a thirty-nine-year-old high school graduate with mechanical skills, can still engage in employment despite his physical limitations. Dr. Naranja's assertion that Mr. Bouchard has no work capacity due to a total knee replacement is rejected by the Court as it overly simplifies the issue by focusing solely on the knee and disregarding Mr. Bouchard's ability to work within reasonable limitations. The Court finds Dr. Naranja's recommendation reflects misguided patient advocacy. This raises the question of the appropriate restrictions for Mr. Bouchard and how these would affect his post-injury earning capacity. Two expert witnesses, Dr. Naranja and Dr. Bono, are deemed not entirely convincing for different reasons. Dr. Naranja's testimony shows bias towards patient advocacy, while Dr. Bono's credibility is undermined by his lack of direct interaction with Mr. Bouchard and incomplete medical records. Dr. Bono reviewed various documents but did not have access to critical records from other medical professionals involved in Mr. Bouchard's care, nor did he examine Mr. Bouchard himself. Consequently, Dr. Bono's insights are more applicable if Mr. Bouchard is a typical total knee replacement patient, but less so if he is not. Before determining the appropriate level of post-injury restriction, it is vital to assess whether the differing opinions on restrictions would substantially impact Mr. Bouchard's earning capacity. Notably, the vocational experts did not differentiate between the restrictions proposed by Drs. Naranja and Bono, indicating that both assumed Dr. Naranja's restrictions applied. Thus, resolving the discrepancy between the doctors is unnecessary as it does not affect Mr. Bouchard's actual earning potential. Additionally, Dr. Naranja provided another opinion indicating that Mr. Bouchard would likely face an earlier exit from the workforce due to his knee condition, projecting a disability from competitive work between ages 45 and 50, and highlighting potential future disabilities following additional knee surgeries. Dr. Bono did not address this specific issue during testimony. The Court dismisses Dr. Naranja's assertion that Mr. Bouchard will be totally disabled from work after future knee replacements, although it acknowledges that he will experience significant periods of temporary total disability post-surgery, impacting his employment prospects. The Court finds no evidence to support a claim of permanent disability following recovery. However, it agrees that future surgeries will be increasingly challenging, with longer recovery periods and potential compromise of available bone in the knee joint, possibly leading to a knee fusion or loss of the knee altogether. Regarding Mr. Bouchard's pre-existing conditions, the Court determines that his right ankle injury has been overshadowed by more severe knee issues, with no significant medical treatment or impact from the ankle injury since the 2003 accident. As for his drug addiction, evidence shows that Mr. Bouchard had a profound addiction prior to the accident, which worsened post-accident, particularly with increased methadone use. The Court finds that the accident exacerbated his need for methadone but did not significantly affect his long-term use of other drugs. Consequently, the Court does not consider the accident to have impacted his pre-existing addiction to non-narcotic drugs, and the United States must address the ongoing effects of his pre-existing methadone use. The impact of the accident on Mr. Bouchard's methadone dosage is evidenced by a significant increase in his prescribed amount post-accident. Dr. Conner initially prescribed 10 milligrams of methadone four times daily prior to the accident, but following the incident, the dosage was increased to nearly five times that amount. The Court determined that one-fifth of Mr. Bouchard's post-accident methadone use was attributable to pre-existing needs. However, Dr. Conner indicated that Mr. Bouchard is no longer experiencing opiate addiction, as he has transitioned to Suboxone, which has mitigated his cravings for narcotics. Instead, Mr. Bouchard's ongoing issues are related to chronic pain and depression, which the current medications have not effectively managed. The Court concluded that Mr. Bouchard's requirement for Suboxone is directly linked to the January 19, 2003 accident, as there is no evidence suggesting he would need it without the accident-related escalation in methadone dosage. Furthermore, Mr. Bouchard's criminal history includes seven misdemeanors and one felony conviction for assault, with the felony occurring in April 1999. Details about this conviction are sparse, and it is implied that it may have occurred in Maine, where the legal classification of assaults varies. Overall, the Court identified that the accident exacerbated Mr. Bouchard's need for methadone, but his current use of Suboxone is considered a direct consequence of the accident, with no basis for apportionment regarding his past and current needs. Mr. Bouchard's felony assault conviction in Maine remains unspecified, but it is acknowledged that felony convictions generally impact employability, particularly in jobs requiring firearms, such as law enforcement. Without detailed evidence, the court cannot determine the specific implications of Mr. Bouchard's felony and misdemeanor convictions on his job prospects. Testimony from Mr. Bopp indicates that while Mr. Bouchard's felony would minimally affect his employability as a welder, it could hinder his competitiveness for other jobs due to his criminal history and drug dependency, which typically lead employers to favor candidates without such backgrounds. Mr. Bopp estimated a 25% reduction in Mr. Bouchard's earning potential due to these issues. Ms. Kalikow did not provide an opinion on the impact of Mr. Bouchard's criminal history on his wages. In the absence of opposing expert testimony, the court accepts Mr. Bopp's conclusion regarding the impact of Mr. Bouchard's psychosocial issues on his pre-accident earning capacity. The primary dispute in the case relates to Mr. Bouchard's pre-accident earning capacity, analyzed by Dr. McCausland using two methods. The first, based on Mr. Bopp's assumptions, suggests an annual earning capacity of $16,228.13, while the second, based on a five-year earnings history, indicates $20,746.02. The United States argues that both figures overstate his potential, highlighting a significant decline in Mr. Bouchard's earnings leading up to the accident. Dr. McCausland views the five-year history as the best predictor, despite it masking a three-year decline from $33,172 to $11,974, likely linked to his drug dependence, ankle injury, and criminal history. Furthermore, the five-year average may not accurately reflect atypical employment decisions and earnings fluctuations during that period. The Court has opted for an analysis based on earning capacity, determining various factors relevant to calculating Mr. Bouchard's potential earnings. 1. **Hourly Rate**: Mr. Bouchard's experts estimated his wage as a welder at $12.00 per hour, which is acknowledged by the Court, despite it being below the prevailing rate for welding jobs. 2. **Hours Per Year**: There is a disagreement regarding the number of hours a welder typically works annually. Mr. Bopp asserted that an average welder works between 1,600 and 1,800 hours per year, while Dr. McCausland claimed the average is 2,080 hours. The Court favors Mr. Bopp's estimate of 1,800 hours, reducing Dr. McCausland's analysis accordingly. 3. **Fringe Benefits**: Dr. McCausland calculated Mr. Bouchard's fringe benefits at 17.2% of his wages, a lower figure than the 23.78% common in construction trades, justified by the variability of benefits Mr. Bouchard received. The United States disputes this percentage, arguing Mr. Bouchard has only received minimum legal benefits since 1998. The Court finds this argument misleading, as Mr. Bouchard did not claim to have no fringe benefits at all during that time. The evidence regarding the applicable percentage for legally mandated benefits is complex; however, the Court agrees with Dr. McCausland that Social Security should be excluded from the calculation if Mr. Bouchard is receiving Social Security disability benefits. The Court concludes that a rate of 6.99% for other legally mandated benefits in the construction industry is appropriate, while also noting the lack of evidence for employer-paid insurance or retirement benefits in Mr. Bouchard's case. Mr. Bouchard's earning capacity includes legally mandated benefits, excluding social security, calculated at 6.99% rather than the 17.2% used by Dr. McCausland. Mr. Bopp assessed a 25% reduction in Mr. Bouchard's work life due to pre-existing issues, which is the only expert opinion available. Although there are arguments that this reduction may underestimate the impact of Mr. Bouchard's problems, the Court finds it a reasonable reflection on his earning capacity. Dr. McCausland initially calculated Mr. Bouchard's pre-injury earning capacity at a present value of $541,130, with fringe benefits at $93,074 based on the 17.2% figure. The Court adjusted this by reducing the earning capacity by 13.46% and applying the 6.99% rate to fringe benefits, resulting in a total pre-injury earning capacity of $501,027.64. In assessing post-injury earning capacity, there is significant disagreement between the parties. Mr. Bopp believes Mr. Bouchard cannot return to welding due to his restrictions and lists low-paying, unskilled jobs he could perform, acknowledging limited opportunities in welding. Conversely, Ms. Kalikow presents a more favorable view, asserting Mr. Bouchard possesses transferable skills in welding and could still perform certain tasks, including assembling and bench welding, with accommodations. Job modifications for Mr. Bouchard may include providing a stool and allowing for periodic breaks. With additional training, he could transition into roles such as electric motor repair, cellular telephone repair, electronic engineering technician, or assembly work, with hourly wages ranging from $10.62 to $18.19. The Court finds Ms. Kalikow's assessment of Mr. Bouchard more credible than Mr. Bopp's. Despite Mr. Bouchard's academic limitations, he has significant mechanical aptitude and is proud of his welding skills, holding certifications in advanced welding techniques. His testimony reflected knowledge and enthusiasm, with no prior employer complaints about his performance as a welder. The Court disagrees with Mr. Bopp's view that Mr. Bouchard's knee issues limit him to low-skilled jobs, emphasizing his welding expertise. However, Mr. Bouchard's knee problems restrict him from various welding jobs that require physical exertion, and he will need accommodations and may face challenges in job placement due to his physical limitations and the local job market in Caribou, Maine. The Court concludes that Mr. Bouchard retains the potential to earn around $12.00 per hour, his pre-injury wage, but acknowledges that his earning capacity has been significantly diminished due to his injuries. Dr. McCausland provided the only calculations for Mr. Bouchard's post-injury earning capacity, estimating its present value at $70,138 and fringe benefits at $12,064, totaling $82,202. His calculations involved averaging hourly wages across various jobs, adjusting for hours worked annually, accounting for wage increases, applying an age earnings profile, and using a discount rate to determine present value. For 2007, he calculated an adjusted earning capacity of $19,447.40, leading to a final figure of $19,721.22 after further adjustments. An employment reduction factor of .4475 was applied to Mr. Bouchard's earnings, accounting for unemployment likelihood, inability to work, psychosocial factors, and a 22% reduction due to the accident. After calculations, the present value of his earning capacity for 2007 was determined to be $8,436.94. The Court found that if Mr. Bouchard returned to work, he could earn $12.00 per hour, adjusting the working hours from Dr. McCausland's estimate to 1,800 hours annually. This led to a starting value of $22,615.20 for his pre-injury earning capacity. The total present value for Mr. Bouchard's post-injury earning capacity and fringe benefits was calculated at $86,903.42. The Court combined pre-injury and post-injury calculations to determine a net loss, yielding $387,068.16 for earning capacity and $27,056.06 for fringe benefits, resulting in a total net loss of $414,124.22. Special damages included $172,968.00 for past medical bills, $116,062.00 for future medical rehabilitation, and $414,124.22 for lost earning capacity and fringe benefits, totaling $703,154.22. Regarding permanent impairment, Dr. Bono assessed a 37% lower extremity impairment of the right leg and a 15% whole person impairment, which were considered in the pain and suffering damages but not evaluated separately. Mr. Bouchard's life has significantly changed since the accident on January 19, 2003, which was compounded by his concern for his son, who was a passenger. He has undergone multiple surgeries, including a total knee replacement, faced challenges in finding re-employment, and has reduced his participation in previously enjoyed activities. The Court expresses significant concern over the likelihood of multiple knee replacements for Mr. Bouchard, acknowledging the certainty of future surgeries and the unpredictability of their outcomes. Despite Mr. Bouchard's pre-existing issues, including a serious ankle injury and substance abuse problems, he was depicted as a devoted father and skilled welder, with aspirations of teaching his son Brandon the welding trade and starting a business together. Maine law allows for recovery in tort cases without requiring plaintiffs to be faultless, meaning the tortfeasor must accept the plaintiff's condition as it is. Mr. Bouchard's combination of pre-existing injuries and those from the accident has resulted in significant ongoing pain and suffering, which the United States failed to adequately separate from his prior conditions. Consequently, Mr. Bouchard is awarded $396,845.78 for pain and suffering and permanent impairment, leading to a total judgment in favor of Mr. Bouchard against the United States for $1,100,000. Key notes include Mr. Bouchard's deteriorating mental health post-accident, his son's testimony about their shared welding aspirations, and a prior suicide attempt by Mr. Bouchard. The Plaintiff objected to the Defendant's motion in limine regarding the disclosure of a suicide attempt, clarifying that this was not relevant to the damages claimed from a car accident. Following this clarification, the Court granted the motion due to the Plaintiff’s discovery violation and the diminished relevance of the suicide attempt. Dr. Bono noted that Mr. Bouchard should only occasionally lift a maximum of forty pounds, deeming it inappropriate for regular job requirements. Mr. Bopp mentioned that the Department of Labor's Dictionary of Occupational Titles (DOT) is a key resource for occupational information, indicating that there are very few bench welding jobs available in Aroostook County, and the likelihood of Mr. Bouchard securing such a position is low. Ms. Kalikow referenced the Maine Department of Labor's 2005 wage statistics, while Dr. McCausland discussed the age-earnings profile published by the Census Bureau, indicating a trend of decreasing earnings for male high school graduates as they age. He emphasized the need to adjust earnings for inflation, using a real discount rate of 2.25%, based on treasury bond rates, and clarified that his calculations for lost wages encompassed both past and future earning incapacity, totaling $541,130 for the period from January 19, 2003, to mid-2006. The Court has opted to use a single figure to represent both past lost wages and future earning capacity, acknowledging that this figure inherently includes lost wages. Mr. Bopp estimates that Mr. Bouchard will lose an additional two years of work, translating to a twenty-two percent loss over his work life. Dr. McCausland calculated ten- and sixteen-year earning histories for thoroughness, but emphasized that these are not valid indicators for future wage loss, preferring a three to five-year review period. Notably, a significant drop in earnings from $63,032 to $12,248 is more impactful than a decrease from $46,646 to $11,973. Ms. Kalikow confirmed acceptance of Dr. Naranja's restrictions during her deposition. Dr. Conner clarified that "narcotics" refers to opiates and explained the limitations of Suboxone, which does not address addictions to substances other than opiates. Mr. Bouchard's employment history includes a stint at McCain's Foods from 1998 to 1999. The Court noted that a felony conviction could hinder employment opportunities, particularly around young children, but found no evidence that prior convictions significantly damaged Mr. Bouchard’s reputation in the Caribou and Presque Isle areas. Dr. McCausland provided a complex assessment of benefits, including workers' compensation and unemployment, but excluded Social Security due to the likelihood of Mr. Bouchard qualifying for disability. The Court found Dr. McCausland's calculations precise but acknowledged the inherent subjectivity in estimating earning capacity, ultimately using a "more likely than not" standard to establish a pre-injury figure. Mr. Bopp identified a lack of job openings for production weld machine operators in Aroostook County, while Ms. Kalikow did not investigate the current job market and could not confirm available positions for Mr. Bouchard. The final figure established by the Court encompasses both past lost wages and future earning capacity.